42. An Apology for Scanlation

Joseph_Ferdinand_Keppler_-_The_Pirate_Publisher_-_Puck_Magazine_-_Restoration_by_Adam_Cuerden

Keppler’s satirical take on “The Pirate Publisher” from Puck (24 February 1884), courtesy of Wikimedia Commons, a satire made possible by Keppler’s lifting and idea and a tune from Gilbert and Sullivan’s Pirates of Penzance.

Once again, as periodically seems to be the case, the evils of scanlation and how it harms “legitimate” manga translation and publication have come to the fore, and because those who are either indifferent to or in support of scanlation tend not to make very convincing arguments on its behalf, I thought it worthwhile, in the interest of having a fully realized debate, to explain why scanlation and more generally resistance to existing copyright strictures does not make one a horrible monster.  Cory Doctorow was converted from a copyright to an open access stalwart, so clearly these issues are not as clear cut as your average tweet might make them out to be.

I’ll go about this in two parts: first, to rehash many of things I have already said in the past, in the hope that people won’t simply overlook them this time; second, to give a concrete example (from my book project) of a circumstance where copyright paranoia actually impedes understanding of what is going on in a comic, even as the artist himself makes use of limitations imposed upon copyright to enhance his creative expression.  My intent in the latter example is not, in fact, to throw shade upon the translator of that text, since, in many ways, the major problem with much of this browbeating discourse is to orient the lines of battle as renegade translators vs. virtuous artists/creators.  The truth is, copyright is a matter, legally and practically speaking, of publication, not creation, and really ought to be discussed from the perspective of publishers and their interests, rather than this purely hypothetical framing of creators and translators.  Copyright only addresses matters of dissemination not origination.

Also, before I get into the nitty gritty, I should note that I both do and do not have a dog in this fight.  Perhaps one of the reasons why I rankle so much at sweeping claims of the evils of scanlation is that I myself have produced work that technically falls under that heading, yet have done so, because I work almost entirely with texts in the public domain, without infringing upon anyone’s copyright.  Now, I realize, when most people say “scanlation,” they do not have work like mine in mind, but the work that I have produced, I would argue, does not differ in principle.  In fact, it is possible precisely because copyright is not absolute, even outside the so-called public domain.

A Few Obnoxiously Persistent Myths

1. “Scanlation is theft.”

No, it isn’t.  Frankly, I am rather surprised by how willing so many are to simply overlook this entirely salient point.  Not only is it not theft, scanlation and the dissemination that would constitute copyright infringement are not even criminal.  Copyright and fair use are fundamentally about what you can get away with, since the state is not involved in the enforcement of copyright beyond providing a judicial venue.  If a copyright holder chooses not to enforce that right by whatever legal means are available to her, then… nothing.  Nothing happens.  The world goes on as it did before.  Now, of course, a copyright holder may choose not to litigate for any number of reasons, despite desiring to do so, the expense of hiring a lawyer, for instance–but this works both ways.  Those who are perfectly within their rights to appropriate work through the exceptions explicitly laid out in the 1976 copyright act (in the US) are quite often bullied into not doing so, because the publishers have financial resources to bury them in ways they cannot afford, quite literally, to fight back against.  You need look no further than academic publishers who repeatedly insist comics scholars get permission to reproduce reference images, even though case law in the US is pretty clear this falls under fair use.  Their reason for insisting?  Academic publishers quite often simply lack the financial resources to fight legal challenges and so do everything in their power to avoid them.

Scanlation is also not theft in the most basic logical sense.  If I take your bike out of your garage, ride it around, and return it before you get home, I have committed theft, because I have deprived you of the use of your private properly, even if there was no real harm in doing so.  If I translate a chapter or two of the latest super shōnen adventures, distribute them to my class through whatever proprietary malarkey my university uses, not only have I not deprived you of the full use of your [intellectual] property, I haven’t even violated your copyright (in the US), because this form of distribution does not legally constitute publication.  Now, if I were to post those same super adventures online, courts have ruled that would constitute publication, and if the publisher of super shōnen adventures wanted to sue me, they would probably win.  Probably.  However, if the class in question were, say, a MOOC, and the materials were placed online as part of an open access course, you could make the argument that such a dissemination 1) is for educational purposes, 2) is de minimis (i.e. uses only a portion), and 3) derives no revenue (for being freely available), thus constituting a fairly compelling fair use argument.  Put the financial resources of a major public university behind the case, and you might just have a winning argument.

2. “Scanlation hurts creators.”

At the risk of sounding like a broken record, no it doesn’t.  Since this is a massive topic in itself, and I have already addressed this point previously, I’ll try to limit myself specifically to the manga context.

One, it doesn’t meaningfully hurt creators, precisely because whether super shōnen adventures continues to be serialized in your favorite weekly, poorly printed telephone book anthology–and thus whether said creator continues to derive a paycheck from the creation of a particular work–has exactly bupkis to do with its potential foreign market.  In fact, it’s entirely possible that said creator has little or no financial interest in ancillary rights of that kind, either because their agent wasn’t particularly bright or perhaps because it was traded away for more favorable contractual conditions in other areas.  Without knowing the specifics of an artist’s contractual relationship with her publisher, it’s grossly irresponsible to speculate as to how any form of potential copyright infringement “hurts” them beyond hurting their feelings.

Two, which brings us back to a point I emphasized earlier, we’re talking about matters of publication, not origination, and so publishers or whoever’s doing the disseminating really ought to be the focus.  Publishers have the real stake in controlling current and potential markets, far more so than the creators whom they deem to transmit an arbitrary percentage of their profits–which, in the case of a relative nobody, might amount to hardly anything.  As a result, it would be Shueisha, not Oda Eiichirō, who would sue me for my historical-materialist re-imagining of super shōnen adventures, and it would most likely be Shueisha, not Oda Eiichirō, who would profit from any fines or financial penalties imposed upon whoever had the nuts to publish my Marxist trash parody.  It’s important to get the real players correctly identified here, because only then can we see how the whole drama of copyright infringement could play out without any meaningful involvement of either myself or the hypothetical creator of SSA.

Three, in Japan, there are any number of practices whereby people read the newest weekly installment of SSA or catch up on past volumes of a series without forking out a single yen.  It’s fairly common practice for people to read anthologies left behind on trains or platforms–some even going so far as to dig through the trash for them–and people stand for hours sometimes in Book Off or some other used book shop without the clerk harassing them to buy something or get out.  People go to libraries, sit in a manga cafe, pass books around to their friends at school, etc. all without incurring the wrath of the almighty copyright fairy.  A certain amount of sales loss is built into the system, and publishers have come to accept that fact, despite not being overly fond of it.  If you think publishers are super sanguine about public libraries being freely available to lend out books to large numbers of people, then you need to think again.  The reality is libraries get away with it, because cultural norms demand it, and publishers simply have to accept that fact.

If the argument here were honest, then the claim would be “scanlation hurts publishers,” but that doesn’t really elicit people’s sympathies the way “hurts creators” does.  If hurting creators were really a cause of concern, then the invective would be directed more toward the Japanese publishers themselves, for, as this piece from CNN in 2010 makes clear, the vast majority of manga artists make surprisingly little from royalties on their work, even while superstars like Oda are sitting on top of piles of cash.  It is for this reason that I also regard calls to “pitch ideas to publishers” with more than a little side-eye, because there is absolutely no guarantee that said publisher will treat either the artist or translator equitably.  Perhaps, if scanlators truly believe their spin about “widening markets,” then they could kill two birds with one stone by, say, contacting some lesser known artist directly and offering to setup and flog a Patreon account in exchange for indifference to distributing translations in the semi-licit manner some readers have become accustomed to.  Plenty of webcomic artists use a variety of funding methods (patreon, kickstarter, merch sales, etc.) while keeping the comic freely available online, so you don’t even have to wonder whether this would work.

3. “Scanlation is morally wrong (and you’re a bad person, if you do it).”

I’ve always found the equation of copyright infringement with lack of moral integrity to be rather bewildering and, at any rate, ignorant of the history of copyright and who it actually serves.  The US Constitution’s position on copyright (as well as the Statutes of Anne upon which it is based) is pretty clear that copyright holders are to enjoy a limited monopoly, limited both in terms of time (then only 14 years with possibility of one renewal period) and extent.  As the Copyright Act of 1790 made clear, foreign works (remember, we’re dealing with translation here) enjoyed no copyright protection whatsoever, a state of affairs that remained unaltered until nearly the end of the 19th century.  Equating contemporary copyright law with an absolute moral regime implies we were all somehow living in a barbaric wasteland until 1976, when the lobbying efforts of large, multinational media conglomerates showed us the true and righteous path.  Copyright laws in the US are called Mickey Mouse laws for a reason, not because the character is emblematic of American virtue and freedom, but because massive media companies like Disney lobby hard to make sure their most profitable IPs do not go into the public domain.  Any benefit that redounds to individual creators is simply incidental, as far as they are concerned.

Moreover, I am especially bewildered by translators who go out of their way to make this moral argument on behalf of publishers.  I can understand the resignation some translators bring to their work, that the publishing context and legal framework are what they are and that it’s easier to go along with it, if our work is to see the light of day.  But from the “moral” perspective, the current copyright regime in the US and throughout most of the Anglophone sphere has in the 20th century stripped translators of rights they enjoyed as recently as the late 19th.  Perhaps one of the most famous and unfortunately unknown legal cases involving translation is Harriet Beecher Stowe’s 1853 suit against the German newspaper publisher F.W. Thomas.  From the Association of Research Libraries’ “Copyright Timeline:”

Harriet Beecher Stowe sued F.W. Thomas, publisher of a German-language periodical, Die Freie Presse, in 1853. Thomas translated Uncle Tom’s Cabin into German and sold it in the United States without the author’s permission. Judge Robert Grier of the Third Circuit Court of Appeals explained in the decision that once an author published her or his work, “and given his thoughts, sentiments, knowledge or discoveries to the world, he can have no longer an exclusive possession of them.” With regard to translations, he continued, “the same conceptions clothed in another language cannot constitute the same composition; nor can it be called a transcript or ‘copy’ of the same ‘book.'”

The basic philosophical underpinnings here are that a translation cannot violate copyright, because it isn’t a copy.  Certainly the framers of the Constitution were of this opinion as well, as made evident in the Copyright Act of 1790, and that notion held sway until pressure was put on Congress to change the statutory landscape.  That you’d never read an opinion like Justice Grier’s from a contemporary American court is far less a statement on “how far we’ve come” and more a symptom of the corporate logic that rules all governance in the US.  Again, those translators who recognize that we’re losing the class war every day and just want to survive capitalism rather than overthrow it, I have no qualms with you.  Do please go about your business.

However, for those translators who insist on making common cause with publishers on supposed moral grounds, I have to wonder, are you simply not aware of how completely modern copyright law disenfranchises you?  In every Anglophone country, as far as I know, a translator cannot copyright the fruits of her labors outside of having copyright transferred to her from the original holder of the source text.  Because translation is now considered a derivative work, even though historically it wasn’t, all perfectly licit translations of manga outside the public domain are functionally work-for-hire, even if you’ve done all the leg work of pitching an idea to a publisher and convincing them to go through with it.  Legally, you are in exactly the same situation as someone assigned to translate a text sight unseen.  I, on the other hand, because I work with texts in the public domain, am perfectly free to dispense with my own work in a manner of my choosing.  Do you not want that for yourselves?  Am I missing something here?  What is the material benefit to translators in keeping the copyright situation as it is?

The Real, Measurable Harm Inherent in Copyright

It is an unfortunate state of affairs that so many of the arguments for and against scanlation are based in personal, anecdotal experience, since then it becomes a matter more of whether you like/admire/already agree with the particular individual making the argument and less whether that argument accurately describes an empirical reality.  On the one hand, some argue (not @’ing anyone in particular) that scanlation creates or at least sufficiently broadens the readership for a particular text so as to show that it or perhaps something else by the same artist might be viable in a particular market.  On the other hand, some translators have argued that they have pitched works to publishers, who then see that there is a scanlation and decide to pass.  In both cases, the evidence is mostly anecdotal (which is not to say inaccurate), and so the arguments, such as they are seem to me to be speaking at cross purposes, since one does not necessarily contradict the other.  Both could be true: one publisher might be on the fence about a particular work and then get put off by the existence of a scanlation, while another may not have considered a particular work viable at all in the Anglophone market but then sees from a scanlation’s existence that interest is, in fact, there.

However, and this is a point that so often gets lost, copyright was not created as a legal regime strictly to protect creators and their respective IPs, even if in practice this is what is seems to do in the present moment.  The purpose of copyright was to facilitate the flow of information and ideas, and to that end it was considered necessary in the 18th century to protect printers and what not for a limited time, so that their work would not be immediately undercut and creators discouraged as a result.  If this is the standard by which copyright is to be judged, the social benefits to a broad information discourse, then copyright has… failed miserably.  An important study from 2010, summarized here in Der Spiegel, by the German Economist Eckhard Höffner shows that the German states in the 19th century enjoyed far greater intellectual productivity under their lax copyright circumstances than their US and UK counterparts, whose copyright laws were much stricter.

Indeed, only 1,000 new works appeared annually in England at that time — 10 times fewer than in Germany — and this was not without consequences. Höffner believes it was the chronically weak book market that caused England, the colonial power, to fritter away its head start within the span of a century, while the underdeveloped agrarian state of Germany caught up rapidly, becoming an equally developed industrial nation by 1900.

Even more startling is the factor Höffner believes caused this development — in his view, it was none other than copyright law, which was established early in Great Britain, in 1710, that crippled the world of knowledge in the United Kingdom.

Thadeusz adds later in the article that Germany’s lax regime

created a book market very different from the one found in England. Bestsellers and academic works were introduced to the German public in large numbers and at extremely low prices. “So many thousands of people in the most hidden corners of Germany, who could not have thought of buying books due to the expensive prices, have put together, little by little, a small library of reprints,” the historian Heinrich Bensen wrote enthusiastically at the time.

The prospect of a wide readership motivated scientists in particular to publish the results of their research. In Höffner’s analysis, “a completely new form of imparting knowledge established itself.”

Implicit in Höffner’s research is the idea that the flowering of knowledge and intellectualism for which the 19th century German speaking world is now so renowned is the direct result of its near absence of copyright laws.  Certainly one might see in China’s recent rise from a mostly agrarian to an industrial economy the role played by that country’s rather indifferent attitude toward international copyright and patent strictures.

My interest here, though, is less economic and more creative in nature, and it is not hard to find examples of how copyright has or might have potentially stifled creative expression in the Anglophone sphere.  Hip-hop as we now know it basically would not exist  if not for the culture of sampling and remixing that has grown up along with it.  The rapper KRS-One has been especially vocal about his sadness over how hip-hop evolved from a milieu in which technical and stylistic innovations were considered freely available to all, thus spurring new creation and further innovation, to one that more or less conformed to the standards and norms of the music industry in the 1980’s.  In the literary world, numerous works are now out of print but still under copyright, thereby effectively limiting their further distribution, even though the original publisher has no interest in doing so.

Sure, it’s hard to argue with the inappropriateness of putting out a scanlation of a manga that appeared just a day after it has appeared in print in Japan, but that one circumstance cannot be the principle by which all scanlation is judged.  What about the ethics of something not so clear cut?  What about an orphaned work published in the ’60’s, whose author has been dead for less than 50 years (the expiration term in Japan), whose publisher no longer exists in any meaningful sense, and for which there is no clear chain of copyright transmission?  Publishers quite often pass on such works, precisely because there is no clear entity to license the IP from.  Is the scanlator of that work an evil banshee ruining everything for everyone simply because copyright laws and the nature of the current publishing industry have put her and the source text in an impossible bind?  It should be clear from what I have said so far that my own answer to that question is “no,” but I do still mean it as a genuine point of inquiry.  At what point is a translator permitted morally if not legally to stand up for a text that has otherwise been seemingly abandoned?

[EDIT: It has come to my attention that the omission of Rakuten’s parenthetical statement was simply an editorial mistake that wasn’t caught in the proofing process, so I have removed any reference to copyright paranoia with regard to this particular example.  I have left my quoted reading otherwise, since it does not depend upon this fact, in case it should still prove to be of interest.  For another example of how copyright can interfere with manga translation, you can read about a less detailed example from One Piece here.  There are also other, related examples in Mudakun’s comment below.  If you have no interest in my reading of Mizuki’s work, skip to the final paragraph.]

What’s more, the harm inherent in the limitations imposed upon manga translation, be they clearly litigated or merely pre-supposed by the publisher, can be seen on a practical as well as a theoretical level.  I feel like I have to apologize to Zack Davisson in advance for the example I am about to use.  As I say above, this is not to throw his work in a negative light but rather happens to be the example I can explain the best.  It comes from Drawn & Quarterly’s 2013 translation of Mizuki Shigeru’s Komikku Shōwa-shi (Comic History of the Showa Era or Showa 1926-1939: A History of Japan, according to the official translation).  The page I focus on in the final chapter of my book project,

ks_e_277

is missing something rather important from the original:

ks_j_2_21_arrow

Since I’m too lazy to rewrite the point, I’ll just quote myself:

The statement in the upper left, “it is referred to as the Japan-Korea Annexation” (iwayuru nikkan heigō [de aru]), is arguably redundant, so its loss from the text is of no great concern beyond comprehensiveness, but the parenthetical statement at the bottom of the page, “figure from a contemporary Kitazawa Rakuten [comic]” (zu wa tōji no Kitazawa Rakuten no manga), is key to understanding a number of visual statements in the second volume that would otherwise require an extremely knowledgeable reader of the history of [manga] to uncover. First, this transposition of Rakuten’s turtle image is not entirely his, for the head has been redrawn by Mizuki, who has added a schoolboy reading a book while seated against the turtle’s foreleg as well as five figures dressed in stereotypical Korean garb. The episode depicted on the page, the so-called annexation of Korea in 1910, is a hybrid of Rakuten’s contemporary illustration of the event and Mizuki’s retrospective reproduction of it. To anyone familiar with Rakuten’s work, the graphic allusion would be obvious, yet the fact that Mizuki felt the need to note this allusion points to the possibility that any given reader would be unlikely to recognize it.

And in case you were of the opinion that this omission is no big deal, I note later on the same page that

[t]his single page, as a representation of a single event in the history of Japan, also expresses a number of visual phenomena that provide a cue for understanding how the second volume of [Komikku Shōwa-shi] is constructed. First is Rakuten, whose visual style Mizuki will ape later in the volume in his full panel portraits of various key historical figures. Second is the invocation of kindai modernity with its financial and political turmoil as well as the styles of contemporaneous illustrations. Third, as already noted, is the fundamental hybridity of the text itself, with its use of hand drawn depictions, of reproductions of contemporary newspaper images, as well as Mizuki’s mixed media of drawing in and onto those reproductions, seen clearly here.

In the second volume (of the Japanese original), Mizuki regularly apes Rakuten’s style to evoke a world that is both visually and socially quite different from the Japan we know today, a creative taking from another’s work that is perfectly permissible within Japanese copyright law.  I speculated at the time that the omission of Mizuki’s parenthetical note perhaps stemmed from unnecessary copyright paranoia, but the fact of the matter is I simply don’t know.  [EDIT: And as I noted above, the mistake was simply an error and not otherwise motivated by fear of copyright infringement.  That said, the omission still alters how the translation can potentially be read.]  Mizuki is rather upfront about his lifting, and I imagine omitting that note from the translation makes it even less likely that a reader will recognize what Mizuki is doing and why.  Perhaps a less rigid understanding of what is and is not permissible under copyright law would have allowed for the attribution to remain.

In the end, the point of all this is to say that copyright is a legal and not a moral framework, and as such its principles are fundamentally mutable in accordance with what we want our culture of knowledge and creative exchange to be.  If that goal is, as those who first envisioned copyright wanted, to facilitate exchange rather than stifle it, it is high time we acknowledged that copyright as it stands now not only isn’t working but is actively impeding that goal.  To that end, scanlation could be one means to push back and reassert very real rights that have been lost along the way, though much of what falls under that heading is rather hard to defend in its current form.  We need to get back to a point where we are discussing first principles, what we want the landscape for translation to be, rather than simply take existing copyright law for granted.  Failure to do so will simply continue the forward march of corporate interests who will lobby for ever increasing restrictions that erode the rights and interests of the many.  Is that really what translators want?

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5 comments

  1. Stumbled on an article detailing a modern, messy example of some of what you allude to.
    What fun!
    http://jeremyvarner.com/blog/2016/10/copyright-confusion-macross-edition/

  2. Jakub Makalowski · · Reply

    Is there a reason you have re-addressed this issue, having already covered it in multiple post some four years ago?
    Also wondering about the case that re-sale in used bookstores, really gives publishers the same amount of profit as scanlations, yet we don’t hear any fervor over them.(incidentally my last visit to a Book-Off, i did notice multiple signs asking customers to not stand around and read in place of purchasing. )

    1. Basically, a fairly well known manga translator decided to go on a tirade on twitter about “hating scanlators,” and I believed the other side deserved to have a fair hearing while the issue was still topical, so that people wouldn’t simply accept a number of arguments uncritically. And the signs have been in used bookstores for some time. People still do it. Yet another example of the letter of the law being one thing but accepted practice being another thing entirely in Japan.

      1. Jakub Makalowski · ·

        Thanks for the reply. The no reading sign actually also reminds me how most spot with no parking signs have a bunch of bicycles around them. Or how red lights often mean speed up instead of stop.

    2. Also, in the book trade, resale is a longstanding and therefore accepted practice. It’s part of the culture. Yet, when it comes to newer forms of IP, software for instance, that typically operate according to licensing, there is a massive amount of pushback against resale.

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